Reasoning of the denial of the motion for a temporary injunction moved by an electricity producer falling under the Renewable Energy Sources Act

On 18 February 2009, the First Senate of the Federal Constitutional Court denied the motion, made in conjunction with a constitutional complaint challenging a legal provision, which had been moved by the operator of a bioenergy park and the project company that had been founded for the construction of the bioenergy park, to temporarily suspend § 19.1 of the Renewable Energy Sources Act (Erneuerbare- Energien-Gesetz – EEG) 2009 by means of a temporary injunction. The complainants had argued that – contrary to situation in the period of validity of the EEG 2004 – the 40 technically independent plants of the bioenergy park were deemed as a single large-scale plant from the entry into force of the EEG 2009 on 1 January 2009 and that they therefore received a lower tariff per kilowatt hour of electricity fed into the public grid; they further argued that as a consequence of the considerable decrease in income resulting from this, the plant operator would have to file an insolvency petition very soon.

In essence, the decision is based on the following considerations:

The motion for a temporary injunction must be denied because the constitutional complaint is patently unfounded. It does not raise any issues which could only be clarified in the main proceedings.

§ 19.1 EEG 2009 does not violate the complainants’ fundamental right to property. It can be left open whether the claim to fees paid under the EEG, which are intended to ensure to the plant operator an income for electricity produced from renewable energy sources that is higher than the market price, is protected by Article 14.1 of the Basic Law ( Grundgesetz – GG). Even if this assumption is made, a violation of a fundamental right cannot be established. It already appears doubtful whether the claim to fees existed in the period of validity of the EEG 2004 to the amount assumed by the complainants. Ultimately, the interpretation of § 3.2 sentence 2 half-sentence 1 EEG 2004 that is relevant to this is, however, not decisive. Even if the review of constitutionality is based on the fact that the fees paid for the electricity that is fed into the grid by the bioenergy park concerned had to be single plant-related so far, and that taking this fact as a starting point, § 19.1 EEG 2009 curtails a legal position of the complainants acquired under the previous law, the regulation is unobjectionable as a constitutionally permissible determination of the content and the limits of property. It admittedly results in a considerable reduction of the feed-in tariff which can be obtained by the operation of the bioenergy park. However, this statutory reduction of the claim to fees satisfies the requirements of the principle of proportionality and those of the principle of protection of public confidence, which must be taken into consideration in the guarantee area of Article 14.1 GG.

§ 19.1 EEG 2009 serves the legitimate objective of avoiding an unnecessarily heavy financial burden being placed, due to the division of one or several large-scale biomass plants into a multitude of smaller plants, on grid operators, electricity suppliers to end users, and ultimately, on electricity customers, who, due to the compensation mechanism set out in the EEG 2009, must bear what is known as the difference costs. The regulation is also suitable and necessary for pursuing this objective; it is also proportionate in the narrower sense. The subsequent amendment of the provisions on feed-in tariffs could prove unreasonable only if the complainants were able to trust in the continued existence of the concept of “plant” as set out, in their understanding, in § 3.2 EEG 2004.

This, however, is not the case. § 19.1 EEG 2009 satisfies the requirements of the principle of the protection of public confidence. It is true that the provision has retroactive effect to the extent that it is also applied to biomass plants that were put into operation before 1 January 2009. This retroactive effect, however, is constitutionally unobjectionable. For the complainants at any rate could at no point in time trust in the continued existence of the regulation which in their view had been set out in § 3.2 sentence 2 EEG 2004.

Even before the planning for the construction of the bioenergy park had started, legal commentaries held the view concerning § 3.2 sentence 2 EEG 2004 that as regards the question of taking together various plants, the decisive factor was the economic connection of the investment at the chosen location. Apart from that, § 3.2 EEG 2004, according to the legislative history of the Act, “also [served to] prevent the avoidance, which would be contrary to the objective of the Act, of the payment thresholds applicable to the tariff amounts by splitting up [the plants] into smaller units”. Also the Federal Government and the Bundesrat had subsequently established that the deliberate splitting up of biogas plants into several units for the sole purpose of achieving higher tariffs contradicted the legislative objective of the EEG.

The complainants therefore had to expect that this legal practice would be changed by the legislature at any rate in the future. Also § 12.3 sentence 1 EEG 2004, on which the complainants had relied, does not establish an unrestricted claim on the part of the plant operators to the status quo of tariff legislation being maintained, which would be contrary under constitutional law to the closing of gaps in the law that had been recognised subsequently.

The cautious action on the part of the legislature, which had been aware of the existing legal uncertainties and the criticised practice of plant splitting at any rate since August 2006, may appear incomprehensible. For the constitutional assessment, this is just as irrelevant as the question of whether it is sensible under considerations of legal and environmental policy with a view to the objective of § 1.1 and 1.2 EEG 2009 to extend the regulation adopted now to existing plants.

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